1079

Penalties

Although FISA and Title III by their terms cover many of the same
wire
and radio communications, the criminal penalties applicable to each may
differ.
Compare 50 U.S.C. § 1809(c) (5 years imprisonment and $10,000
fine)
with 18 U.S.C. § 2511(4) (providing a sliding scale of
imprisonment
depending on the nature of the communication and other circumstances, and
fines
under Title 18). Moreover, one court has held that "the FISA applies only
to
surveillance designed to gather information relevant to foreign
intelligence."
United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992) (en
banc),
cert. denied, 506 U.S. 1005 (1992).

Because the 1986 Act is the most recent enactment of criminal
penalties
for unlawful interceptions, it is recommended that United States Attorneys'
Offices (USAOs) prosecute electronic eavesdropping violations under Title
III
rather than under FISA unless the purpose of the eavesdropping was gathering
foreign intelligence information. The legislative history of FISA makes
clear
that a single unlawful interception should not be punished under both
statutes.
See H.R. No. 1283, 95th Cong., 2d Sess. 97 (1978).

It is not necessary that the eavesdropping be exclusively related
to
gathering foreign intelligence to implicate FISA. See, e.g.,
United
States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991) ("Although evidence
obtained under FISA subsequently may be used in criminal prosecutions,
investigation of criminal activity cannot be the primary purpose of the
surveillance." (citing United States v. Duggan, 743 F.2d 59, 78 (2d
Cir.
1984)), cert. denied, 506 U.S. 816 (1992); United States v.
Rahman,
861 F. Supp. 247, 251 (S.D.N.Y. 1994) (rejecting argument that because the
government believe that these defendants had violated or would violate a
criminal
statute, the primary purpose of the surveillance cannot have been the
gathering
of foreign surveillance information). In fact, FISA specifically provides
that
information obtained pursuant to its procedures may later be used for law
enforcement purposes with the approval of the Attorney General. 50 U.S.C.
§
1806(b). It is the Criminal Division's position that USAOs should prosecute
electronic eavesdropping violations under FISA only if the purpose of the
eavesdropping is related to gathering foreign intelligence.